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Our board is interested in opening our board meeting with an invocation or prayer, like the legislature does. Is this OK?

March 1, 2010

Religion in schools is a hot topic in this state and nationally. Practically speaking, any sort of prayer at a board meeting - even a moment of silence - will draw criticism and could draw a lawsuit. While it may be possible to win such a lawsuit, it will be costly and divisive for your community. Ask yourselves how this action will help you to meet your core mission of educating students. I believe we would be better off not spending our education dollars fighting lawsuits if such lawsuits can be avoided and the actions that were the cause were not part of our core mission.

Here a legal perspective from OSBA staff attorneys:

Here in Oregon, we are under the jurisdiction of the Ninth Circuit Court of Appeals. Although board members may hear about things being done differently in other parts of the country, or by different types of legislative bodies such as our own legislature, the board is governed by Ninth Circuit Court decisions specifically about school boards. The controlling case for Oregon school boards is Bacus vs Palo Verde, 2002 U.S. app. LEXIS 24552. In this case, the Ninth Circuit Court of Appeals found that a prayer at school board meetings including the phrase "in the name of Jesus" was unconstitutional. This practice violated the Establishment Clause because the school board's prayer always included this phrase, which advanced one faith, and there was not a rotation among leaders of different faiths, sects, and denominations.

It is important to note that courts have distinguished between the political bodies of school boards and the legislature. Some courts have held that school boards are so "inextricably intertwined with public schools that it must be evaluated on the same basis as school boards themselves." Coles V. Cleveland Bd. Of Educ., 171 F.3d 369, 383 (6th Cir. 1999). Thus, while it may be permissible to open a legislative session with a prayer, the same does not necessarily apply for school boards.

As a practical matter, the school board should be wary about including any type of prayer or moment of silence prior to a meeting. As it is such a hot topic, this type of controversy draws the attention of people from all over the country. If the board proceeds, there is a high probability that its practice will result in some sort of high-profile and costly legal action..

National School Boards Association staff attorney Tom Hutton has said, "Courts historically have been skeptical about anything that promotes prayer or one form of organized religion over another in a government-sponsored setting. School boards actually have more flexibility to do invocations than some people might think, but, if they want to stay out of trouble, and out of court, there should be a huge flashing neon sign that says 'moment of silence' and nothing more."

If a board wants to pray prior to school board meetings, it is advisable to solicit legal opinion from the district's attorney and notify your liability insurance carrier.